Expert Witnesses and Virtual Work

By Noah Bolmer

Virtual court is on the rise, with Engaging Experts’ guests reporting a major increase in Zoom meetings and hearings since 2020. While not all expert witnesses prefer the new paradigm, the trend is clear. In this piece, our expert witnesses share their thoughts on Zoom. 

Convenience 

Working from home is a primary benefit of virtual court. Scheduling becomes easier without planning travel, and while it is important to look professional in front of the camera, only your top third is visible. Technical expert Dr. Seth Miller recalls:  

Zoom is great—I like not having to leave my room. In the middle of [the COVID-19 pandemic] I did a court case over Zoom; an arbitration case where you could see one of the [judges] on the three-judge arbitration panel at the end of one of the sessions. The judge stands up, and you can see his pajama bottoms on underneath the suit—right under the top [. . .] I am 100% [onboard], everybody’s in their living room, their dining room, or the bedroom and it’s fine. It really makes it nice to be able to have eye-contact with attorneys when you’re talking about stuff and prepping over a long distance. 

Compensation expert and attorney Garth Gartrell enjoys saving travel time, noting, “Yeah, since the pandemic, [Zoom’s] been the predominant method; almost all of my depositions are remote. And that’s great because I spend my time in the Eastern and the Pacific time zones [. . .] I just had a New Jersey case settled where I would’ve had to show up there [. . .] for the most part, I’ve testified remotely over the last four years.”  

Working remotely can help remove pressure between work and family, according to business law expert Prof. Stephen Diamond: “I still generally work remotely [. . .] because we have a disabled son, and that’s an important caveat that may not be true for many experts. If I were called to testify in court in person, I would do it, but I try to keep it remote. I work via Zoom, and that’s worked out well. I’ve done trials in court, and I’ve done them on Zoom, and it’s actually quite effective and efficient.”  

Home Base 

Not only is it convenient, it can be less stressful to testify from your own comfortable, familiar surroundings. Forensic accounting expert J.W. Verret explains:  

It feels different. I recently did a deposition against the SEC, and I did part of the deposition in person. You get into a room and maybe your own counsel is there. Maybe not. Maybe they’re there by Zoom—the counsel who hired me was there by Zoom. The SEC and CFTC lawyers, a joint case, were all sitting there around the room. They’re looking at me like I just got called to the principal’s office. [Mr. Verret describes feeling as though permission is required to get water or use the restroom] The other half of the deposition was at home. I’m in my basement with my dog. I’m safe. It feels different. I’ve done half a dozen depositions, and I don’t get nervous anymore. Especially after that criminal cross-examination. It’s becoming old hat, but it’s still just much more relaxing. If you’re opposing counsel, and you want to depose that witness in person, you can. 

Disadvantages 

While the advantages are significant, not all experts agree on which circumstances call for in-person appearances. Chemical engineering expert Prof. David Rockstraw prefers live preparation:  

What does not work is short online prep sessions. The pandemic forced us into them. We would have an hour to two-hour Zoom session, and then they would say “OK, study this for a few hours.” It is not the same as being locked in the conference room with counsel, where they are there to answer questions. As you are reviewing content, you say “what about this?” Having someone there for that immediate feedback is helpful. 

Food marketing expert Dr. John Stanton prefers in-person proceedings: 

[A] change is you always had to go someplace to be deposed, whereas now you can be deposed [online. . .] I dress nicely. I don’t think that people get to see what I look like enough. I prefer to be there in person; I prefer to teach in person. That puts me in the minority already, but for me personally, I like to do it in person. 

Technical considerations also play a role, as there are potential issues with connection and equipment quality, sudden noises, and computer crashes.  

Computer science expert Dr. Jeffrey Miller prepares for potential lag:  

The virtual depositions, on the other hand—because I have done a number of virtual depositions as well as in-person depositions—there is a different demeanor that has to take place there, because there’s a slight delay that you have with video. You have to make sure that your attorney has an opportunity to make objections, to interject if there’s something where he needs to say, “This is a question that is infringing on attorney-client privilege. Don’t answer that.” If you’ve started talking and you missed that, then that becomes part of the record, so it’s important that the timing is a little delayed to give the attorney the opportunity to make objections. 

Experts generally do not get to choose whether a session is remote or in-person; that is at the discretion of the court or the attorneys (though you can certainly state your preference). Therefore, be prepared to handle either eventuality. When the action is remote, enjoy the conveniences, but maintain a professional demeanor, prepare for connection issues, and be ready to travel if needed.  

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!